Supreme Court to Hear Pregnancy Discrimination Case

Column by Contributing Fire Law Author Spencer Nichols

On December 3, 2014 the U.S. Supreme Court will hear oral argument in a case that will hopefully settle uncertainty about whether employers must provide the same (or even more favorable) benefits to pregnant employees as they do for non-pregnant employees who have similar work limitations related to non-line-of-duty injuries or illnesses.  While there have been multiple cases of fire departments facing repercussions for failing to treat pregnancy the same as non-line-of-duty injuries, [Davies, Florida; Maryland (settlement); DC (protests)] there has been some disagreement among the lower courts about what the law actually requires.

In Young v. UPS, the Fourth Circuit Court of Appeals found that UPS did not violate the law by declining to provide a pregnant employee under doctor’s orders not to lift more than 20 pounds with the same bargained-for leave benefits as employees who had similar lifting restrictions because of a non-line-of-duty injury or illness or a disabled employee who had requested an accommodation under the ADA.

The plaintiff, along with the ACLU, apparently attempted to argue that the law required employers to treat her more favorably than an employee who was experiencing similar lifting restrictions based on a NLOD injury.  They also argued that in order to prove discrimination based on pregnancy, all a plaintiff had to do was point to a policy that was less favorable for pregnant employees than for non-pregnant employees with similar work restrictions.  (Normally, in a discrimination cases the plaintiff must prove, among other things, that they experienced adverse employment action because of their race, gender, etc.  Furthermore, under the ADA, a temporary lifting restriction might not qualify as a disability that entitles the employee to a reasonable accommodation).

The Fourth Circuit rejected both arguments and held that UPS’s policy was not evidence of discrimination because it was gender neutral and did not state that pregnant women were entitled to less favorably leave because of their pregnancy.  The court also held that employers are not required to accommodate pregnant employees with temporary lifting restriction when a non-pregnant employee suffering from similar restrictions would not be entitled to an accommodation under the ADA.

Fire Departments that do not treat pregnancy equal to or more favorably than a NLOD injury, regardless of what the CBA says, should therefore watch the Young v. UPS case carefully and consult with counsel to ensure that their policy conforms to whatever the Supreme Court may rule.

Contributing Fire Law Author: Spencer Nichols is currently a Special Assistant City Solicitor for the Baltimore City Fire Department. He is a graduate of Georgetown University Law Center and formerly served in the U.S. Navy JAG Corps.

Any views expressed represent those of the author and do not necessarily reflect those of the Baltimore City Fire Department or the Mayor & City Council of Baltimore.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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